Filed: May 12, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-12-2005 Caou v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-4256 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Caou v. Atty Gen USA" (2005). 2005 Decisions. Paper 1099. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1099 This decision is brought to you for free and open access by the Opinions of the U
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-12-2005 Caou v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-4256 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Caou v. Atty Gen USA" (2005). 2005 Decisions. Paper 1099. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1099 This decision is brought to you for free and open access by the Opinions of the Un..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-12-2005
Caou v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-4256
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Caou v. Atty Gen USA" (2005). 2005 Decisions. Paper 1099.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1099
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4256
YUN JUN CAO
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
On Petition for Review of Order of the
Board of Immigration Appeals
(Board No. A79 309 920)
Argued November 18, 2004
Before: ROTH, SMITH, and BECKER, Circuit Judges.
(Filed: May 12, 2005)
NORMAN KWAI WING WONG (argued)
401 Broadway, Suite 1205
New York, NY 10013
Attorney for Petitioner
PETER D. KEISLER
JOHN C. CUNNINGHAM
MICHELLE R. THRESHER
JEFFREY M. SENGER (argued)
Office of Immigration Litigation
United States Department of Justice
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
BECKER, Circuit Judge.
Yun Jun Cao, a Chinese national, petitions for review of the
denial by the Board of Immigration Appeals (BIA) of her
application for asylum and withholding of removal and for
protection under the Convention Against Torture (CAT). Cao
claims that, while working as a pediatrician in a Chinese hospital,
she discovered that the hospital was committing infanticide in an
attempt to comply with China’s population control policy. After
her letter to a Hong Kong news reporter exposing this practice was
intercepted by the Chinese government, she says that she was
detained for three months, interrogated, and physically abused.
Upon release from prison, Cao fled China and arrived in the United
States on a visitor’s visa.
Cao’s allegations that she was persecuted for exposing and
criticizing the practice of infanticide, if credible, would be
sufficient to establish a valid asylum claim under the amended 8
U.S.C. § 1101(a)(42)(2005). The Immigration Judge (IJ), however,
denied Cao’s claim for relief on the basis of an adverse credibility
determination. After declaring that Cao’s demeanor as a witness
was “quite perfect,” the IJ discredited virtually every aspect of
Cao’s testimony. With respect to the infanticide issue, the IJ
proceeded on the basis of the notion that there is no real distinction
between infanticide and forced abortion, which led her to be
incredulous that Cao could be so offended by infanticide when she
was already aware of the practice of forced abortion. The IJ made
no attempt to anchor this aspect of her credibility finding to the
record. Additionally, the IJ found a lack of credibility with respect
2
to a number of other aspects of Cao’s testimony, each of which turn
out to be either based on speculation or without any support in the
record. The IJ thus improperly discredited Cao’s testimony in a
number of material respects.
The BIA summarily affirmed the IJ’s decision without
opinion. Thus, we review the IJ’s decision alone. Because the IJ’s
determination does not meet the substantial evidence standard
under which the decision must be reviewed, see infra Part II, we
will grant Cao’s petition for review and remand to the BIA for
further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Cao attended the Gaungxi Province College of Traditional
Chinese Medicine and then practiced as a pediatrician at the
Second Affiliated Hospital of Guangxi Province in the city of
Nanning. She is married and has a daughter, and both her husband
and daughter remain in Nanning at this time. The following is
Cao’s testimony about the events beginning in 1999.
In that year, after fifteen years of medical practice, Cao
discovered that her hospital was killing live born babies who were
born in violation of China’s population control policy, described in
the margin. 1 Although she had been aware of China’s family
planning policy and had previously known that officials would at
times force women to have late-term abortions in which the fetus
1 In 1979, the Chinese government first instituted a
comprehensive family planning policy which established quotas on
the number of children permitted for each couple. The policy has
changed over time, relying in varying degrees on education,
economic incentives, propaganda, and coercive measures to ensure
compliance. See U.S. State Department, China: Profile of Asylum
Claims and Country Conditions 20 (1998) [hereinafter 1998 China
Profile]. While the government officially denies that physical force
is used to compel abortion or sterilization, there are widespread
reports that such coerced procedures nevertheless occur. Id.
Neither the Chinese government nor the U.S. State Department has
officially recognized the use of infanticide as part of China’s
population control policy.
3
was terminated before exiting the birth canal, Cao did not know
that the hospital was committing infanticide until 1999.
Cao realized that the hospital was committing infanticide
only after her Pediatrics department moved to the same floor as the
Obstetrics/Gynecology (Ob/Gyn) department due to hospital
renovations. One day, she noticed a woman crying in the
Obstetrics ward and was told that the woman’s child had died
suddenly after she had given birth. Cao’s suspicions were raised
because the obstetricians had not consulted with the Pediatrics
department. An Ob/Gyn nurse told Cao, “never mind about that,
that was business for family planning policy.”
After this incident, Cao began to notice other women crying,
each of whom claimed her baby had died shortly after birth. She
finally confronted Lao Zi Juan, a friend from medical school, who
worked in the Ob/Gyn department, about the infant deaths. Lao Zi
told her that the mothers did not have family-planning permits, and
so, under the hospital rules, nurses would inject newborn babies
with alcohol to cause death. Cao claims that she was shocked to
learn that the hospital was killing children born alive to comply
with the population control policy.
According to Cao, a few months later, at a party in a friend’s
home, she encountered Suen Yut, a reporter for the Hong Kong
magazine, Cheng Ming Monthly. In the course of their
conversation, Suen Yut asked Cao if she had heard that infanticide
took place at Chinese hospitals. Cao told him what she had
witnessed at her hospital. Suen Yut asked Cao to write a detailed
account about the practice of infanticide and send it to him so that
he could write an article exposing the practice. While hesitant at
first because she was worried about losing her job, Cao eventually
agreed to send the information to Suen Yut after he assured her that
the article could be published anonymously.
Because she was concerned about using the mail for sending
such sensitive information, Cao first mailed Suen Yut a test letter,
containing nothing controversial. This letter reached him without
being intercepted. She then mailed a second letter detailing what
she had observed about the practice of infanticide. This letter was
sent by registered mail, which required her to give her name. The
letter, however, was intercepted by the Chinese authorities and
traced back to Cao.
As a result, Cao was arrested at her home in Nanning on
4
April 25, 2000. She says that the authorities then gave her husband
a notice of detention, which she submitted in evidence at the
proceeding before the IJ. She claims that, after her arrest, she was
detained, interrogated, and beaten. The officers presented her with
the letter to Suen Yut and she eventually confessed that she had
written it. She testified that the interrogations included beatings
and electric shocks, and that she continues to have recurring pain
in her shoulder, neck, and fingers as a result. At her hearing before
the IJ, Cao testified that she thought her interrogators were public
security officials, although they were not always in uniform. In
her asylum application, Cao had said she was tortured by fellow
inmates, at the officer’s instigation, but she did not mention this
fact in her oral testimony.
Cao was not charged with any crime, but the security
officers told her that she could be charged with sedition and
sentenced to ten years imprisonment. Cao testified that she was
detained for three months and was conditionally released on July
25, 2000. She says that the officials released her so they could use
her to lure Suen Yut back to mainland China. On release, she had
to post bail and report to public security every week, but she
believes that she remained under surveillance. On July 26, 2000,
she received notice that her employment with the hospital had been
terminated.
After her release, Cao managed to send word to Suen Yut
through a friend who was visiting Hong Kong, warning him not to
contact her or to come to Nanning. The friend mailed the warning
letter from Hong Kong. Suen Yut apparently did not return to
mainland China and was not apprehended by Chinese officials.
On October 16, 2000, Cao made her last weekly report to
public security. That afternoon, she absconded from Nanning and
went to the Shanghai airport, where she bribed a relative of a friend
with “30,000” to provide her with an exit permit. 2 Though her
house had been searched after her arrest and again after her release,
the public security officers did not find her passport, which was
stored in a safe deposit box at a bank. Cao boarded a plane in
Shanghai, and arrived in the United States on a B-1 visa on
2 The record does not make clear whether the amount of the
bribe is measured in yuan or U.S. Dollars.
5
October 20, 2000. In filling out her temporary visa application,
Cao lied about the purpose of her visit to the United States, and
falsely stated that she had never been arrested, and that she was still
employed at the hospital. Cao admitted these falsehoods at her
hearing before the IJ.
Cao was authorized to remain in the United States only as
a temporary visitor. After she overstayed her visa, she was
interviewed by an asylum officer who referred her claim to an
Immigration Judge. On October 26, 2001, Cao was served with a
Notice to Appear charging her with removability pursuant to
Section 237(a)(1)(B) of the Immigration and Nationality Act. Cao
conceded removability and requested asylum, withholding of
removal, and protection under the Convention Against Torture.
In addition to testifying to the aforementioned facts, Cao
introduced documentary evidence to corroborate her story. She
submitted her passport and hospital identification card. She offered
a letter from her husband in China to Cao at her address in New
Jersey. The letter relates that after Cao escaped to the United
States, the public security officers came to Cao’s house in China to
search for her and “harassed” her husband and daughter,
confiscated letters, and threatened them with a gun. When the
officers found nothing, her husband said the public security officers
“request[ed] me to notify you to return back to China to surrender
yourself and accept the punishment by law. Otherwise we would
face more serious punishment . . . if you were arrested or if you
were sent back to China some day.”
In addition, she offered a document, which she claims was
given to her family upon her arrest by the Nanning City National
Security Bureau, which states that she was arrested and jailed for
“contribut[ing a] reactionary article for overseas publication.”
Further, Cao introduced her dismissal letter from the Gaungxi
College of Traditional Chinese Medicine, which denounced her as
being “poisoned by Capitalistic anarchism for [a] long time. She
has [an] intimate[] relationship with overseas anti-China forces and
post[ed a] contribution . . . outside of China to make vicious attack
against the national basic policy of China.”
When asked by the IJ how she received these documents,
Cao explained that she had asked her family to send evidence
supporting her asylum claim, and that her husband had a friend
mail his letter and the other documents from Guangzhou province.
6
Cao testified that she did not retain the envelope, but that the
package did not appear to have been opened when she received it
in the United States.
Finally, Cao provided a letter, dated July 31, 2001, which
she claims is from the reporter Suen Yut at the Cheng Ming
Monthly in Hong Kong. The letter states in the first paragraph that
[Cao] suffered arrest, imprisonment and torture
because she provided me the news clues, in
which she reviewed the fact[] that [the] Chinese
government kill[s] infants by medical means in
nationality autonomous regions for the purpose
of population control. She therefore escaped to
your country to avoid further persecution.
The letter goes on to discuss more generally human rights abuses
in China and other unrelated instances of China’s restriction of free
speech and other civil liberties.
The IJ issued a lengthy decision denying Cao’s asylum,
withholding of removal, and CAT claims on the ground that Cao
was not credible. The IJ justified her adverse credibility
determination on several purported inconsistencies and
implausibilities in Cao’s story. Because this credibility
determination goes to the heart of Cao’s claim on appeal, we will
discuss the substance of the IJ’s findings below.
Cao appealed to the Board of Immigration Appeals, which
affirmed the IJ without opinion pursuant to the streamlining
regulations, 8 C.F.R. § 1003.1(e)(4). She timely petitioned for
review.
II. JURISDICTION, SCOPE AND STANDARD OF REVIEW
This Court has jurisdiction to review final orders of removal
under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the IJ
without opinion, this Court reviews the IJ’s opinion alone. See Dia
v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We
review the IJ’s opinion under the “substantial evidence” test, set
forth in 8 U.S.C. § 1252(b)(4)(B): “the administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” See also Abdille v.
7
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (agency’s finding
“must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.”). Under this standard, “[T]he Court
will uphold the agency’s findings of fact to the extent that they are
‘supported by reasonable, substantial, and probative evidence on
the record considered as a whole.’” Gao v. Ashcroft,
299 F.3d 266,
272 (3d Cir. 2002) (citations omitted).
The credibility determination, like all IJ factual findings, is
subject to substantial evidence review. Abdulrahman v. Ashcroft,
330 F.3d 587, 597 (3d Cir. 2003). Adverse credibility
determinations may be based on “inconsistent statements,
contradictory evidence, and inherently improbable testimony.”
Dia, 353 F.3d at 249. While the standard of review is deferential,
this Court still must exercise meaningful review of the IJ’s
decision:
Adverse credibility findings are afforded substantial
deference so long as the findings are supported by
specific cogent reasons. The reasons must be
substantial and bear a legitimate nexus to the
finding.
Gao, 299 F.3d at 276 (citations omitted).
III. DISCUSSION
A. The Legal Standard
The Attorney General may grant asylum to an alien who is
a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42). See 8
U.S.C. § 1158(b)(1). To be eligible for asylum, an alien must show
that he or she:
is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of
[the country of such person’s nationality or in which
such a person last habitually resided] because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion. . . .
8
8 U.S.C. § 1101(a)(42)(A). A showing of past persecution gives
rise to a rebuttable presumption of a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1). While asylum constitutes
discretionary relief, an asylum applicant is entitled to withholding
of removal if he or she can satisfy the higher burden of
demonstrating that it is more likely than not that life or freedom
would be threatened because of a protected ground if he or she
were removed. 8 U.S.C. § 1231(b)(3)(A) (1999); Miah v. Ashcroft,
346 F.3d 434, 439 (3d Cir. 2003).
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110
Stat. 3009 (Sept. 30, 1996), amended § 1101(a)(42) to specify,
inter alia, that individuals persecuted for resistance to a coercive
population control program “shall be deemed to have been
persecuted on account of political opinion,” and thus are eligible
for asylum.3 Cao has alleged that she was persecuted for exposing
and criticizing the practice of infanticide committed as part of
China’s population control policy. If credible, Cao’s allegations
would qualify her for asylum under the amended 8 U.S.C.
§ 1101(a)(42), as constituting “other resistance” to China’s
population control policy.
There is little precedent defining the scope of the population
control portion of Section 1101(a)(42)’s protections in cases where
the applicant does not claim he or she was personally subjected to
3Section 1101(a)(42) provides, in relevant part:
[A] person who has been forced to abort a pregnancy or to
undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive population
control program, shall be deemed to have been persecuted
on account of political opinion, and a person who has a
well founded fear that he or she will be forced to undergo
such a procedure or subject to persecution for such failure,
refusal, or resistance shall be deemed to have a well
founded fear of persecution on account of political
opinion.
9
forced abortion or sterilization. Nevertheless, the statute plainly
specifies that a person who engages in “other resistance to a
coercive population control program, shall be deemed to have been
persecuted on account of political opinion.” It appears to us that
writing an article critical of population control practices and
exposing the practice of infanticide constitutes such “other
resistance.” At all events, even if we did not hold that the
population control provision specifically applied, it is clear that
Cao’s allegations of detention and physical abuse for exposing and
criticizing a government practice would be encompassed in the
more general asylum protections for those who have been
persecuted on account of political opinion. See Grava v. INS, 205
F.3d 1177, 1181 (9th Cir. 2000) (“[W]here the whistle blows
against corrupt government officials, it may constitute political
activity sufficient to form the basis of persecution on account of
political opinion.”); Marquez v. INS,
105 F.3d 374, 381 (7th Cir.
1997) (noting that “political agitation against state corruption”
could be considered grounds for asylum).
Therefore, as Cao’s allegations would be sufficient to make
out an asylum claim, Cao’s ability to seek relief hinges on the
credibility determination.
B. Review of the IJ’s Credibility Determination
1. Abortion and Infanticide
Cao testified that when she discovered infanticide was
occurring in her hospital she was “shocked” and grew “despondent”
to find that “they would kill [a] baby like that.” Cao said that she
had known that forced abortions, even late term abortions, had
occurred, but that she did not know until her Pediatrics department
was moved to the same floor as the Ob/Gyn ward that nurses were
killing live infants after delivery. The IJ, however, was troubled
that Cao would distinguish between infanticide and forced
abortions. The IJ stated:
[Cao] seemed to make [a] very distasteful distinction that
she believes that the saline abortions, in her opinion, were
less offensive than the infanticide that was being
performed on live born children. In other words, she seems
10
to make a distinction in her own peculiar mind that a saline
abortion that kills the fetus before it exits the birth canal is
somehow distinguishable from the infanticide or forced
death of the child born alive.
Later in her opinion, the IJ again expressed discomfort that
Cao would make such a distinction, “How somebody can . . .
mak[e] a distinction between saline abortions and others is really
disturbing.” The IJ’s view that the two procedures should be
deemed equally offensive or functionally equivalent led her to
discredit Cao’s professed “shock” at discovering that infanticide
occurred, because Cao had admitted that she was previously aware
that forced abortions had occurred at the hospital. Since the IJ
equated abortion and infanticide, she could not believe that Cao
would be shocked to discover infanticide was occurring since “this
concept of forced abortion is nothing new to anybody” (emphasis
added). The IJ continued by adding that “[Cao] eventually admitted
that she knew that all the hospitals in China were probably
performing forced abortions, despite the fact that she went into
sudden shock in 1999 just because one of the methods was different
from all the rest.”
Because the IJ herself did not distinguish between abortion
and infanticide, she seemed unwilling to believe that Cao would
make such a distinction. She thus discounted Cao’s testimony that
she was surprised to find that the hospital was not only practicing
forced abortions and other more widely known coercive population
control techniques, but was actually killing live born babies. The
IJ was similarly skeptical of Cao’s testimony that she only became
aware that infanticide was occurring after her department was put
on the Ob/Gyn floor. The IJ concluded that “[Cao’s] story that she
didn’t know what was going on is absurd.”
The conclusion that Cao’s testimony was not plausible was
once again driven by the IJ’s unwillingness to believe that Cao did
not equate abortion and infanticide. The IJ opined,
Working in the same place for 17 long years, the
respondent makes it seem as if she must have stayed in a
cube the entire time that she was there . . . [Cao] never
pieced together the fact that even though family planning
officials were in her hospital, and that even though she
11
knew that they were performing saline abortions on
women and probably other procedures to force abortions
on women who were earlier in their pregnancies, that she
never quite was able to put together how it was that other
women who where already in their ninth month of
pregnancy were having their pregnancies terminated.
(emphasis added). The IJ thus seems to have believed that since
Cao knew there were abortions occurring, she should have
ineluctably concluded that infanticide was also practiced. The IJ
asked, “[H]ow could the respondent not know that infanticide was
being practiced at that hospital where the family planning officials
were terminating pregnancies in the ninth month?”
By accepting this reasoning, the IJ disregarded the seemingly
logical explanation of why Cao did not discover the practice of
infanticide until 1999. Cao testified that for the prior fifteen years
she had worked in a different part of the hospital, which used a
different entrance from the Ob/Gyn department. Thus, Cao said
that she did not have contact with the Ob/Gyn patients prior to the
1999 relocation of her department. It was only when she was on
the same floor as the Obstetrics ward and noticed women crying in
the hall that she discovered infanticide was occurring. At all
events, there is nothing in the record to support the IJ’s statement
that a pediatrician would have to “have stayed in a cube” not to
know the specific practices of other medical departments located in
physically different portions of the hospital. This conclusion is
mere speculation and is unsupported by the evidence in the record.
The IJ’s beliefs regarding abortion and infanticide similarly
led her to dismiss the claim that Chinese authorities would have had
an interest in concealing the practice of infanticide by arresting
Cao, putting her under surveillance, and investigating her and the
reporter Suen Yut. The IJ wondered why China would want to
“cover up something that the world already knows about.” She
continued,
you would have to be an ostrich with your head in the
sand if you were going to try to believe that China
doesn’t know that the world knows that it has been
definitely involved in forced sterilization and abortions
and terminations of pregnancy. Why the respondent
12
believes that China would want to suppress information
that is already out and made public in the world is
something beyond logic.
There are three apparent fallacies in the IJ’s reasoning.
First, while China does not deny that it has family planning
regulations, the U.S. State Department’s country profile states that
the official Chinese government policy is that it “prohibits the use
of force to compel a person to submit to abortion or
sterilization . . . . [T]he [Chinese] Government does not condone
the practice of forced abortion and . . . the responsible officials are
disciplined and undergo retraining if it occurs.” 1998 China Profile
at 25. Even though there have been prior exposés of forced
abortions and sterilizations, and even though the United States has
recognized in the IIRIRA that such practices occur, the Chinese
government apparently maintains that forced abortion and coerced
sterilization are prohibited. A chronicle that local officials were
violating the government policy would reveal a breakdown in
Chinese central control---something an authoritarian government
like China’s would likely want to keep secret.
Second, even to the extent that the Chinese government
might acknowledge that instances of forced abortion or sterilization
nevertheless occur, infanticide is certainly not acknowledged by the
Chinese government as a potential abuse of the population control
policy, much less as an officially sponsored practice. Cao testified
that the nurses told her infanticides were being conducted pursuant
to official policy, yet infanticide is not even mentioned in the 1998
U.S. State Department report. Once again, the IJ’s belief that
forced abortion and infanticide are equivalent led her to the
untenable conclusion that China would have no interest in
suppressing stories that live born babies are killed after birth, when
China does not publicly acknowledge that infanticide occurs.
Finally, the IJ’s position that the Chinese government would
not want to suppress criticism of otherwise well-known or even
official policies is inconsistent with China’s propensity to deal
“harshly and arbitrarily” with “challenges to the CCP’s political
authority.” 1998 China Profile, at 3. According to the U.S. State
Department, the Chinese government continues to “use repressive
measures such as intimidation, administrative detention, imposition
of prison terms, house arrest, or exile to control tightly dissent” and
13
has displayed only “some limited tolerance of public expressions of
opposition to government policies.” Id. at 14. The IJ’s supposition
that China would not want to suppress an article that is critical of
any government policy runs contrary to the nature of an
authoritarian regime that brooks little criticism, particularly in the
international press.
It is clear that late term abortion and infanticide are
functionally different procedures. Neither party challenges the
proposition that forced abortion and infanticide are abhorrent
practices. The IJ’s adverse credibility determination was in large
part driven by her unwillingness to believe that Cao might make a
moral distinction between infanticide and forced abortion, that she
was motivated to take new action upon learning of the practice, or
that the Chinese government would persecute Cao for exposing and
criticizing the practice. In refusing to believe that Cao would make
that moral distinction, the IJ did not rely on “specific, cogent
reasons,” Dia, 353 F.3d at 250, but on “speculation, conjecture
[and] otherwise unsupported personal opinion.”
Id. Accordingly,
the IJ’s conclusion that Cao did not distinguish between the
procedures lacks substantial evidence.
At oral argument, the government contended that the IJ’s
statements regarding infanticide and abortion were only incidental
to her adverse credibility determination. We disagree. Cao’s
professed belief that infanticide is more reprehensible than forced
abortion or sterilization was the motivating factor behind her
decision to send the article to Suen Yut, which led to the
persecution at the heart of Cao’s asylum claim.
In sum, because the IJ equated forced abortion and
infanticide, she declined to credit Cao’s testimony about her
attempt to expose the practice of infanticide and refused to believe
the Chinese government would act to suppress Cao’s article
publicizing the stories of infanticide at her hospital. The IJ’s
unwillingness to recognize that Cao and others might recognize
such a distinction was critical to her adverse credibility findings as
to nearly every aspect of Cao’s testimony and was unsupported by
substantial evidence in the record.
2. The Other Credibility Determinations
In addition to her credibility determinations relating to
14
infanticide and abortion, the IJ discredited other portions of Cao’s
testimony.
a) Interactions with Suen Yut
The IJ found an inconsistency between Cao’s written asylum
application and her testimony at the hearing regarding Cao’s
conversation with Suen Yut. In her testimony, Cao stated that Suen
Yut asked her questions about infanticide. In her written asylum
application, Cao said it was she who initiated the conversation and
that the reporter became “indignant” upon learning about the
practice of infanticide. The IJ seized on this small difference in the
Cao’s account, concluding that “from the very beginning, we’re not
talking the same story.”
After reviewing the record, we cannot find support for the
IJ’s conclusion that Cao changed her story in any material respect.
First, Cao’s written asylum application does not state who initiated
the conversation, but instead notes, “[Suen Yut and I] had a very
pleasant conversation. I told him the wrong[]-doing at our hospital
during the performance of the Birth Control Planning. He was
indignant after know it.” It is not clear from Cao’s written
application who brought up the specific topic of infanticide.
Moreover, contrary to the IJ’s conclusion, there is no
inconsistency in Cao’s description of Suen Yut’s reaction to her
story about infanticide. In her oral testimony, Cao claimed that
Suen Yut responded, “I cannot imagine in China today there is such
corruption and . . . infanticide.” In her written application, she
states that he grew “indignant.” The IJ seemed to believe it was not
possible for someone could grow “indignant” about a practice of
which he already had general knowledge stating, “the respondent
stated in her written asylum application that when the reporter
learned about [the practice of infanticide], he became indignant . .
. . Yet, in her testimony, the respondent is very clear that the
reporter knew that this was going on . . . and he wasn’t shocked and
indignant at all . . . .”
We disagree that the IJ has identified any material
inconsistency in Cao’s statement that Suen Yut became “indignant”
after discussing the practice of infanticide with Cao. First, there is
nothing about the term “indignant” which requires an element of
surprise. More importantly, the term “indignant” is a translation,
15
and thus this one choice of word should not be accorded
determinative weight. This purported inconsistency was made
much of by the IJ in holding against Cao; however, the IJ’s reliance
thereon is not supported by the record.
b) Letter from Suen Yut
The IJ did not believe that the purported letter from Suen
Yut to Cao was authentic. The first reason the IJ doubted the
authenticity of this letter was that the letter lacked details relevant
to Cao’s asylum claim and “goes on to have basically three
paragraphs of political diatribe irrelevant to this case.” The letter
did, however, state in the first paragraph that Cao had “suffered
arrest, imprisonment and torture because she provided me the news
clues, in which she reviewed the fact[] that [the] Chinese
government kill[s] infants by medical means in nationality
autonomous regions for the purpose of population control. She
therefore escaped to your country to avoid further persecution.” AR
434. The remainder of the Suen Yut’s letter contained a general
criticism of the Chinese government and its suppression of civil
rights.
The second reason the IJ discounted the letter was Suen
Yut’s apparent lack of journalistic style: “it is amazing that a
supposed reporter doesn’t understand that [he] should provide this
Court with supposed details and facts. In other words, frankly, the
letter doesn’t even sound like one that a reporter would have
written.” While criticizing the letter, on the one hand, for its
absence of relevant information, the IJ wondered how Suen Yut
knew of certain details regarding Cao’s asylum claim because
Cao’s original letter detailing the facts about infanticide was
intercepted by the Chinese authorities.
We find the IJ’s critique of this letter to be unfounded. First,
Suen Yut’s letter does not contain any information about the
contents of Cao’s intercepted letter. Instead, Suen Yut’s letter
states only that Cao provided Suen Yut with “news clues” about the
practice of infanticide, which could refer to the information
discussed at the party. Moreover, Cao claimed that she had talked
with Suen Yut and written to him after her release, but the IJ
disbelieved this explanation because Suen Yut did not say that Cao
had subsequently spoken with him in his letter.
16
Second, we do not believe Cao should be burdened with
Suen Yet’s supposed lack of journalistic acumen or his failure to
know what facts are relevant to Cao’s asylum claim under
American law. Indeed, if the letter had displayed such
sophistication and had contained only relevant facts, we might have
reason to doubt its authenticity. While the IJ’s point about the lack
of authentication of the letter might justify giving this letter little
weight, there is nothing about the letter which should create an
adverse credibility determination against Cao.
c) Cao’s Escape from China
The IJ also did not find Cao’s story of her escape from China
to be credible. The IJ found it implausible that Cao was able to
retain her passport, leave her province while under surveillance, get
to the Shanghai airport, and bribe an official to obtain an exit
permit. The IJ’s incredulity, however, does not appear to be
justified in light of Cao’s clear explanation for each aspect of her
escape, which is not undermined by anything in the record.
Cao testified that even though the authorities searched her
home, they did not discover her passport, which she had stowed in
a safety deposit box at a bank. Further, while Cao claimed she was
under “surveillance” when she was released from detention, the
record shows that “surveillance” meant that she had to go to public
security every week to explain what she did that week, not that her
movements were regularly observed by the authorities. Thus, there
seems to be no implausibility about Cao’s story that she was able
to flee after her weekly interview.
The IJ could not believe that Cao could bribe a public
official for her exit visa, stating “[Cao] may want to pretend that
it’s all okay because she had to pay a bribe, but the bribe was paid
to a public official. Why would any public official dare, in China,
the most repressive government we can imagine[?]” This argument
is dispatched by our opinion in Dia, 353 F.3d at 252. There, the IJ
rejected the petitioner’s similar claim that a Guinean policeman
helped him cross the police border for a bribe of 300,000 Guinean
francs, which was equivalent to about 150 U.S. Dollars. The IJ
“question[ed] why this policeman would risk his reputation, not to
mention, his life, to assist the respondent, a wanted political
opponent, evade detection by the police . . . for . . .$150.” We
17
rejected the IJ’s contention in Dia because it was
not explained, and appear[ed] to be pure conjecture. It is
not only not based on the record, but, in fact, it
contravenes key parts of it. The Country Report confirms
that Guinean police extort money from citizens at road
blocks and that corruption at road checkpoints is
widespread and “systematic.” In addition, figures
contained in the record show that $150 U.S. is nearly a
quarter of the per capita GDP in Guinea for 1999, a sum
likely tempting to a policeman in a poor country replete
with corruption within its police force.
Id.
As in Dia, the IJ’s disbelief that such bribery would occur is
controverted by the State Department’s country profile which
indicates that bribery is in fact widespread in China. See 1998
China Profile, at 22. Moreover, Cao testified the bribe was
“30,000,” although she did not specify if this figure was in yuan or
U.S. dollars. In either dollars or yuan, however, this bribe was
clearly a substantial sum. Given the evidence in the record that
bribery is in fact widespread among Chinese officials and the
potentially large amount of money involved, we find, as we did in
Dia, that the IJ’s opinion that a public official would not dare take
a bribe in China is pure conjecture.
d) Cao’s testimony regarding her detention
The IJ found that Cao had been inconsistent in relating who
had tortured and beaten her while she was in detention. In her
written application Cao had claimed she was “tortured by the
inmates” at “police[] instigation”; however, in her oral testimony
she said that the people questioning and interrogating her were “in
general” police officers, who “sometimes had uniforms, sometimes
not.”
We do not find a significant inconsistency between the two
statements. At the hearing, Cao was asked only who questioned her
and not who had tortured her—the statement that she was only
questioned by officers is not inconsistent with the statement that she
was tortured by inmates at the officer’s instigation.
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e) Vagueness of her asylum application
The IJ also expressed frustration that Cao’s written asylum
application was not supplemented when Cao obtained counsel. The
IJ says that the “application doesn’t seem to say anything” and was
“intentionally vague,” such that the application’s “tricky little
vaguely written manner and presentation” prevented her from
making credibility determinations or assessing the validity of the
claims. The IJ stated that Cao thereby left herself with an
“opportunity to not only add information to her case, but actually
change the entire claim, in terms of the basic presentation of facts.”
A review of the Cao’s written asylum application, however,
does not support the IJ’s scathing characterization. Rather, Cao’s
four-page, type-written statement lays out, in material terms, all of
the claims and allegations made in her oral testimony. She
describes in some detail how she discovered the infanticide
practices, how the infanticide procedure was done, her encounter
with Suen Yut at the party, the interception of the letter to Suen
Yut, her detention, and her escape to the United States. We
therefore disagree that the application would have allowed Cao to
“change her entire claim.”
One way in which the IJ claimed that Cao used strategically
open-ended language is that Cao’s written application states that
she was “arrested” after the letter to Suen Yut was intercepted but
her oral testimony specified that she was “arrested at home” and
provided additional details about the arrest incident. The IJ found
this “convenient because there is no way that the Court can
determine whether she is being consistent with the representations
that were supposed to have been written down.” Similarly, the IJ
found suspicious that Cao had written that she was interrogated
“several times” whereas she refined this statement in her oral
testimony to the more specific “six times.”
Cao testified, in response to questioning from the IJ, that she
did not include some of these details because she believed they
were “very specific points” encompassed by her more general story.
Whether or not this is so, we agree with Cao that the vagueness
cited by the IJ does not constitute a meaningful omission which
should lead the court to make an adverse credibility finding. See
Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996) (“[A]n
applicant’s testimony is not per se lacking in credibility simply
19
because it includes details that are not set forth in the asylum
application.”). These details are essentially collateral points. The
increased specificity in her oral testimony as to certain aspects of
her story does not justify the allegation that Cao was somehow
intentionally vague in her application or that Cao would have been
able to change her story in any material respect.
f) Use of the Mail
Cao testified that she had mailed Suen Yut the letter
detailing her story about infanticide through registered mail only
after sending a test letter that arrived without detection. Cao
represented that she believed it was “prudent” to test the security of
the mail in this way and that, after the first letter went through, she
felt it was relatively safe to send the second letter with the
infanticide story.
The IJ did not believe that Cao would have mailed the letter
to Suen Yut knowing that there was a risk that it could be
intercepted. The IJ said:
In other words, if that first [letter] was a trial or a test of
whether her mail was going to be intercepted, then [Cao]
absolutely knew that it was reckless and absurd to put
something in the mail that was critical of the Chinese
government, which tolerates no criticism. This is one reason
why this Court just can’t believe this story. Why the
respondent would choose such a reckless route . . . is
inexcusable and illogical and it just lacks the ring of truth.
(emphasis added).
The IJ similarly found “ridiculous” Cao’s claim that she sent
a letter, upon her release from detention, warning Suen Yut not to
come to mainland China or to contact her. The IJ stated, “It is
unbelievable that the respondent would have . . . mailed a warning
to the same reporter after she had been supposedly put in jail for
three months for mailing something else to him earlier.” The IJ did
not seem to credit Cao’s testimony that she took further precautions
in warning Suen Yut by having a friend mail the warning letter to
Suen Yut from Hong Kong, not from mainland China.
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In the same vein, the IJ doubted the authenticity of a letter
allegedly sent from Cao’s husband in China to Cao in New Jersey
on November 11, 2001. In addition to informing Cao that public
security officials had come to their house in China looking for her,
the letter also criticized the Chinese government in other respects.
The IJ’s main reason for doubting the authenticity of the letter,
however, was that she did not believe that “the respondent’s own
husband . . . again put something in the mail [that was] highly
controversial, when the respondent herself testified that he is
supposedly being threatened and surveilled and having guns
pointed at him. I don’t think that her husband would have mailed
anything controversial in an envelope if this story is true.” Later
she wrote that “the Court just can’t believe that anybody with a lick
of sense, if this story were true,” would have mailed a critical letter
from China. The fact that Cao testified that her husband also
mailed her the arrest warrant and the hospital dismissal certificate
from China was also a factor in the IJ’s denial of the authenticity of
those documents.
While the IJ would surely not be compelled to credit Cao’s
testimony regarding her and her husband’s risks in using the mail,
in this case, we find the IJ’s adverse credibility determination to be
impugned by her rhetoric, which characterizes Cao’s and her
husband’s conduct as “ridiculous,” “reckless,” “absurd,”
“inexcusable,” and “without a lick of sense.” While perhaps taking
such risks is unusual, it is not implausible. Indeed, we can conceive
of many instances where an individual would be willing to risk him
or herself to protest a policy which he or she abhors or to protect a
friend or loved one. See Dia, 353 F.3d at 255 n.24 (citing a number
of reasons that a wife might urge her husband to flee the country
without her and concluding that the IJ should have considered these
“equally likely scenarios”). At all events, even deferring to the IJ’s
skepticism on this point, given the many errors already identified in
the IJ’s analysis, this alone would not be sufficient to support the
IJ’s overall adverse credibility finding.
C. Application of the Substantial Evidence Standard
Under the deferential “substantial evidence” standard we
require an IJ to provide a “sound basis---whether supplied by the
record evidence or by background knowledge---to support the IJ’s
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findings.” Dia, 353 F.3d at 251. In Gao we stated,
Adverse credibility determinations based on
speculation or conjecture, rather than on evidence in
the record, are reversible. Generally, minor
inconsistencies and minor admissions that reveal
nothing about an asylum applicant’s fear for his
safety are not an adequate basis for an adverse
credibility finding. The discrepancies must involve
the heart of the asylum claim.
299 F.3d at 272 (citations and internal quotation marks omitted).
Here, a “sound basis” is wholly lacking. The portions of the IJ’s
opinion relating to infanticide and abortion are a function of the IJ’s
personal notions, which led her to draw untenable conclusions
about Cao’s claim. With respect to the other purported
inconsistencies and implausibilities, each of these has proven to be
based, not on evidence in the record, but on the sort of speculation
or conjecture that Gao proscribes.
Finally, while we find IJ’s conclusions with regard to the
plausibility of Cao’s testimony to be unsupported by the record, we
reiterate that the IJ found Cao’s observable demeanor to be, “quite
perfect. She is the utter professional, very well spoken, and the
Court is convinced that she is a well educated medical practitioner
as she claims.” Having explained why the IJ’s credibility
judgments are untenable, the IJ’s finding that Cao’s demeanor
suggested truthfulness leaves no further bases on which to deny
Cao’s claim. See Dia, 353 F.3d at 252 (“Absent a reason such as
implausibility or inconsistency based in the record, or that
[petitioner’s] demeanor in some way led her to question his
veracity, the IJ should not have summarily dismissed [petitioner’s]
testimony . . . .”).
In sum, we conclude that the IJ’s adverse credibility finding
is not supported by substantial evidence in the record. We will
therefore grant Cao’s petition for review of the order of the BIA,
vacate the BIA’s order, and remand the matter to the BIA for
further proceedings.4
4 While we find that the IJ lacked substantial evidence to
make the adverse credibility determination, we note that we are not
22
finding Cao to be credible nor determining Cao’s eligibility for
relief. This determination is for the BIA in the first instance on
remand. See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (requiring
the court of appeals to remand the ultimate question of eligibility
for relief to the BIA);
Dia, 353 F.3d at 260-61 (remanding to the
BIA to clarify or supplement the record without regard to the prior,
erroneous credibility determination).
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